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A Response to Media Biases Against Restoring Checks and Balances

NOTE: Several liberal Florida newspaper columnists responded without research or thought to Rep. Julio Gonzalez’s proposal to create judicial accountability and restore governmental balance of powers. They were predictably snide and shallow. Some were just factually wrong. Here is Gonzalez’s response to one specific column— which they could have had if any had even called him for an interview.

By Representative Julio Gonzalez

This morning, I awoke to the displeasure of reading Tom Lyons’s Sarasota Herald-Tribune piece on my proposal for a legislative override of a judicial opinion, otherwise known as a Notwithstanding Clause.

I was displeased, not at learning that Lyons disagreed with my proposal, as a robust discussion representing all sides of such an important matter is of central importance to the continued existence of a vibrant republic, but because of the shear negligence, disingenuousness, and ignorance displayed in Mr. Lyons article.

For starters, Lyons purposely fails to inform his readers that it was not I who first identified this problem, but Thomas Jefferson.

Looking to Jefferson

In 1820, Jefferson wrote a letter to Jarvis Williams regarding a series of essays Williams wrote where he mentioned the judiciary’s role in overturning laws it found to be unconstitutional. Perfectly on point, Jefferson said,“to consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” Moreover, Jefferson pointed out that the situation was made even more dangerous, “as they are in office for life, and not responsible, as the other functionaries are, to the elective control.“

As with so many other issues, Jefferson’s thoughts on this matter were prescient.

Lyons also neglected sharing that Canada has such a provision in its Constitution that has been working seamlessly since 1982.

This information and so much more was available to Lyons, but he failed to disclose it to his readers. Fortunately, the facts he did not present are available in an article I wrote and published at therevolutionaryact.com and in my book, The Federalist Pages.

The fact is that Americans have been concerned over the courts’ plenary authority when speaking on constitutional issues for decades. They recognize that in a system characterized by checks and balances, there is no check on the Supreme Court. Contrary to Lyons’s ill-informed opinion, any serious constitutional law observer will tell you of the courts’ increasing activism over the past 100+ years. And it is an issue that was discussed at length in law school.

Recognizing the threat that giving plenary authority on any matter to a branch of government represents to a republic, Canada enacted a solution. And other variations exist in England, Israel, and Australia, among others, none of which are mentioned by Lyons.

It’s time we have the same discussion about our own system.

Whether Florida, and indeed our nation, ought to implement a judicial override is a very serious matter, and if it is in anyway forehead-slap-worthy as Lyons states, it’s in the astonishment that it fell upon the physician/lawyer son of a Cuban immigrant who haphazardly landed in his state’s legislature to suggest it nearly 200 years after the problem was first identified.

Let a thoughtful debate begin

The Notwithstanding Clause is not a radical proposal, as Lyons calls it, nor is it the result of partisan strife as his article feeblemindedly suggests.

No. The Nothwithstanding Clause is a serious proposal designed to address a quintessential threat to our American system of government and a loophole in the system of checks and balances the Framers built. And once again, I cannot take credit for identifying the threat, as George Washington spoke about it in his farewell address. He called such an intrusion into another branch’s function usurpation and said, “though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.”

I hope Floridians, and Americans in general, shut out the sophomoric rants from irresponsible and under informed pseudopundents like Lyons and learn more about this very important topic. Doing so will place them on a path of discovering more about our great foundational documents and of the people who proposed them. Once they do, I bet more than 60% of the people will agree with Jefferson, Washington, and countless others on the necessity and wisdom of an American Notwithstanding Clause.

Dr. Julio Gonzalez is an orthopedic surgeon, lawyer and State Representative for South Sarasota County, Florida. He is the author of The Federalist Pages, available at thefederalistpages.com or at Amazon. He is available for speaking engagements and can be reached at gonzopod@gmail.com.

2 thoughts on “A Response to Media Biases Against Restoring Checks and Balances”

The judicial override amendment being proposed by Rep. Gonzalez is “radical” only to those ignorant of history. Jefferson’s 1820 letter to Jarvis Williams was by no means the first expression of concern about the scope of the authority given by the new Constitution to the federal judiciary. In Anti-Federalists 11 and 15, Brutus (probably NY Judge Robert Yates) warned of the lack of limitations placed on the federal judiciary, and the absence of any authority bestowed on Congress or retained by the States to correct errors made by the federal judiciary, Yates wrote in 1788:

Perhaps nothing could have been better conceived to facilitate the abolition of state governments than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees . . . Their decisions on the meaning of the Constitution will commonly take place in cases arising between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one.

In 1803, Marbury v. Madison proved Yates to be correct. As is said — the rest is history,